CCPR/C/130/D/3042/2017
from the obligation to exhaust domestic remedies, given the scale of the tragedy that gave
rise to their complaint. They argue that the Optional Protocol should be applied with some
flexibility and without excessive formalities, and they submit that they do not possess the
cultural, linguistic and economic means to pursue legal remedies in the State party.
2.4
The authors note that the shipwreck occurred outside the national territories of both
Italy and Malta. They submit, however, that the complaint falls under the jurisdiction of both
Italy and Malta for several reasons. First, both States are parties to the International
Convention on Maritime Search and Rescue, 1979. Although the Maltese authorities were
responsible for the search and rescue maritime area in which the vessel was located, the
Italian authorities were exercising de facto control over the Maltese search and rescue area,
as Italy is often the only State willing and able to carry out rescue operations in the area. In
addition, both States parties were in continuous contact with the vessel in distress and
activated rescue procedures. Therefore, notwithstanding the severe shortcomings of the
operations, both States parties exercised control in the search and rescue area over the persons
in distress. The authors argue that, as a result, a causal link exists between the lack of prompt
rescue activities, the shipwreck and the loss of lives. By acting negligently, or by failing to
act, the States parties established a crucial link in the causal chain that was responsible for
the shipwreck. The authors note that, in that respect, it has been argued that a distress call
creates a relationship between the State that receives it and the person who sends it, and that
owing to that relationship, the jurisdictional link between the person in danger and the State
authorities emerges as a result of the distress call, meaning that the authorities consequently
have an obligation to provide emergency services.2
Complaint
3.1
The authors note that the duty to render assistance to those in distress at sea is a wellestablished international rule under the United Nations Convention on the Law of the Sea
and the International Convention for the Safety of Life at Sea, 1974.3 They claim that the
State party violated their relatives’ rights under article 6 (1) of the Covenant owing to its
negligent acts and omissions in the rescue activities at sea, which endangered their relatives’
lives and resulted in their death or disappearance. Specifically, they claim that the State party
authorities breached their duty to take all appropriate steps in order to safeguard the lives of
their relatives by failing to promptly pass the distress calls from the vessel to the competent
search and rescue authorities, i.e. the Rescue Coordination Centre of Malta (hereinafter, “the
Maltese rescue centre”). They also claim that the State party authorities failed to promptly
inform the alleged victims that they should contact the Maltese authorities, thereby delaying
the rescue operation, and also failed to send the coast guard vessels from Lampedusa or the
Italian naval ship located closest to the vessel to rescue the persons on board, despite a request
from the Maltese authorities. The authors submit that by failing to promptly inform the
Maltese authorities, the Italian authorities delayed the rescue operation by two hours. They
further submit that, had the Italian authorities directed the Italian naval ship – the ITS Libra
– and coast guard boats to rescue the persons on board the vessel, those boats would have
reached the vessel at 3 p.m. at the latest, i.e. two hours before the vessel sank. They argue
that the ITS Libra could have covered the distance to the vessel in distress in one hour. They
further argue that as the vessel was in imminent danger and in dire need of assistance, and
being aware that no other authority was taking action, the Italian authorities should have
assumed responsibility for initiating suitable action and should have conferred with
2
3
The authors refer to Seline Trevisanut, “Is there a right to be rescued at sea? A constructive view”,
Questions of International Law, 2014, p. 9.
The authors refer to article 98 (1) of the Convention on the Law of the Sea which stipulates that:
Every State shall require the master of a ship flying its flag, insofar as he can do so without serious
danger to the ship, the crew or the passengers:
(a)
to render assistance to any person found at sea in danger of being lost;
(b)
to proceed with all possible speed to the rescue of persons in distress, if informed of their
need of assistance, insofar as such action may reasonably be expected of him;
(c)
after a collision, to render assistance to the other ship, its crew and its passengers and, where
possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port
at which it will call.
3